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Judgment
The insurer is in appeal. It is a very unfortunate case where, in an accident the claimant-Respondent sustained severe injuries and has suffered an amputation.
The case made out by the claimant-Respondent is that on 22.02.2002, he was going in the lorry bearing registration No. CTX-9003 by taking milk cans. The lorry was driven at high speed and it met with an accident inasmuch as it hit a tree. The resultant effect was that he sustained severe injuries. The claimant-Respondent was taken to Hassan S.C. Hospital for treatment and thereafter, he was taken to Sanjay Gandhi Hospital, Bangalore for further treatment. He was an inpatient in the Hospital for three months The claimant-Respondent was a sportsman and on account of the accident, his future looks bleak.
The driver was placed ex parte inasmuch as he was served, but he failed to appear before the Tribunal. The 2nd Respondent, who is the owner of the vehicle incidentally, happens to be the father of the claimant -Respondent also. The father admits the accident, which is due to the rash and negligent driving of the driver of the ''lorry. He further submits that the vehicle is covered by the Insurance and he has no objection for grant of compensation. The insurer filed Statement of objections and denied all the petition averments. The specific contention of the insurer is that the vehicle in question is a heavy goods vehicle and the claimant- Respondent was travelling as a passenger. It is also stated that a passenger in a goods vehicle is not covered and they have not collected additional premium. The learned member of the Tribunal has recorded a finding that indeed the accident has occurred due to the rash and negligent driving of the driver of the vehicle in question. Insofar as the quantum is concerned, having regard to the nature of the injuries, the Tribunal has awarded a compensation of Rs. 3,21,040/-. Insofar as the liability is concerned, the Tribunal has directed the insurer to satisfy the award after taking necessary security from the owner of the vehicle and then pay the claimant-Respondent and recover it from the owner. Aggrieved by the same, the insurer is before this Court.
We have heard Mr. Sowri Raju, learned Counsel appearing for the insurer and Smt. Sharadamba, learned Counsel appearing for the claimant-Respondent.
We notice that during the pendency of this appeal, the owner of the vehicle has died and the legal heir is none other than the claimant himself. Thus, there is an incongruous situation.
Indeed we notice that the specific case made out by the claimant-Respondent is that he was a salesman and was travelling in the vehicle as a passenger. Indeed we notice that: the vehicle in question is insured but however, no extra premium is collected by the insurer in so far as the non fare paying passengers. The policy discloses that only the driver and six workmen i.e., loaders and un-loaders are covered. Having regard to this factual situation, we are of the view that it was not open for the Tribunal to direct the insurer to pay the compensation amount, on the owner of the vehicle, furnishing security and later recover it from him. We also note that the finding recorded by the Tribunal is that it is not open for the claimant-Respondent to claim that he was a salesman inasmuch as no sales activity has taken place. Indeed we have perused the petition averments as well as the evidence, which is let-in by the claimant in support of this contention. As observed, the Tribunal was not justified in directing the insurer to satisfy the award and later recover it from the owner, more so, having regard to the fact that the policy does not disclose that the passengers are also covered. Having said so, we are of the view that the judgment and award passed by the Tribunal is liable to be interfered. Hence, we are of the view that the insurer is entitled to succeed. Hence, the following order,
(a) Appeal is allowed in part.
(b) The impugned judgment, insofar as directing the insurer to pay the amount is set-aside and the insurer is exonerated. Rest of the award stands confirmed.
(c.) The amount in deposit shall be refunded to the insurer.